Tracing

Front 1

Foskett v McKeown

Back 1

to be filled

Front 2

Banque Belge pour L’Etranger v Hambrouck

Back 2

to be filled

Front 3

Lipkin Gorman v Karpnale Ltd

Back 3

to be filled

Front 4

Agip (Africa) Ltd v Jackson

Back 4

to be filled

Front 5

Commerzbank AG v Gareth Price-Jones

Back 5

to be filled

Front 6

Scottish Equitable plc v Derby

Back 6

to be filled

Front 7

Niru Battery Manufacturing Co v Milestone Trading Ltd (No 1)

Back 7

to be filled

Front 8

Re Diplock

Back 8

to be filled

Front 9

Re Hallett’s Estate

Back 9

to be filled

Front 10

Chase Manhattan Bank v Israel-British Bank (London) Ltd

Back 10

to be filled

Front 11

Westdeutsche Landesbank Girozentrale v Islington LBC

Back 11

to be filled

Front 12

Re Oatway

Back 12

to be filled

Front 13

Shalson v Russo

Back 13

to be filled

Front 14

Turner v Jacob

Back 14

to be filled

Front 15

Re Tilley’s WT

Back 15

to be filled

Front 16

Roscoe v Winder

Back 16

to be filled

Front 17

Clayton’s Case

Back 17

to be filled

Front 18

Boscawen v Bajwa

Back 18

“Tracing is neither a claim nor a remedy but a process. It is the process by which the plaintiff traces what has happened to his property, identifies the persons who have handled it or received it, and justifies his claim that the money which they handled or received can properly be regarded as representing his property.” Per Millett LJ

Front 19

Re Montagu’s Settlement

Back 19

to be filled

Front 20

Mara v Browne

Back 20

to be filled

Front 21

Barnes v Addy

Back 21

to be filled

Front 22

Baden, Delvaux and Lecuit v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA

Back 22

to be filled

Front 23

*Royal Brunei Airlines v Philip Tan Kok Ming

Back 23

to be filled

Front 24

Agip (Africa) Ltd v Jackson

Back 24

Millet LJ: “Tracing at common law ... serves an evidential purpose. The cause of action is for money had and received. Tracing at common law enables the defendant to be identified as the recipient of the plaintiff’s money and the measure of his liability to be determined by the amount of the plaintiff’s money he is shown to have received.”

Front 25

Heinl v Jyske Bank (Gibraltar) Ltd

Back 25

to be filled

Front 26

Lipkin Gorman v Karpnale

Back 26

to be filled

Front 27

Dubai Aluminium Co Ltd v Salaam

Back 27

to be filled

Front 28

*Twinsectra Ltd v Yardley & Others

Back 28

to be filled

Front 29

*Barlow Clowes International v Eurotrust International Ltd

Back 29

to be filled

Front 30

Adnan Shaaban Abou-Rahmah and others v Al-Haji Abdul Kadir Abacha and others

Back 30

to be filled

Front 31

Pulvers v Chan

Back 31

to be filled

Front 32

Statek Corporation v Alford

Back 32

to be filled

Front 33

AG of Zambia v Meer Care & Desai

Back 33

to be filled

Front 34

Sinclair Investment Holdings v VTF Ltd

Back 34

to be filled

Front 35

El Ajou v Dollar Land Holdings plc

Back 35

to be filled

Front 36

*Bank of Credit and Commerce International (Overseas) Ltd and another v Akindele

Back 36

to be filled

Front 37

Belmont Finance Corporation v Williams Furniture Ltd (No.2)

Back 37

to be filled

Front 38

Re Montagu’s Settlement

Back 38

to be filled

Front 39

Westdeutsche Landesbank Girozentrale v Islington LBC

Back 39

to be filled

Front 40

City Index v Gawler

Back 40

to be filled

Front 41

Re Diplock (Ministry of Health v Simpson

Back 41

to be filled

Front 42

Remedies awarded as a result of tracing (common law)

Back 42

1) proprietary remedy of restoration
- common law only provided an action for specific recovery of land not chattels, so only rarely has tracing at common law led to a proprietary claim.

2) personal remedy of restitution
- The most usual remedy at common law is a personal claim against the recipient for the value of the property he has received.
- In the case of money, the action will be for money had and received.

Front 43

Remedies awarded as a result of tracing (equity)

Back 43

1) equitable ownership
- Court will recognise that the claimant is the equitable owner of the property in the simple case where the defendant held the original property and thus the substituted property on trust for the claimant.

2) equitable charge or lien
- A charge will be imposed on the property which enables the claimant to recover the value of his money that went into the property, but not to claim ownership of the asset itself where the property has depreciated in value.

3) subrogation
- Where the claimant’s money is used to discharge a secured debt, the claimant is allowed to ‘stand in the shoes’ of the creditor, and gain the benefit of the creditor’s charge

4) Personal remedy

Front 44

Advantages of a proprietary remedy

Back 44

1) Priority over general creditors on insolvency
- A personal claim operates against the person rather than attaching to any particular asset in the defendant’s hands. It therefore relies on the defendant having sufficient funds to meet the claim. If the defendant is insolvent, a claimant with a personal remedy will take his place with the other creditors and will only receive a percentage of the sum he is awarded. A proprietary claim to ownership, however, gives a right to particular property itself which never became part of the defendant’s property.

2) Benefit from any increases in value of the property traced
- As a proprietary claim to ownership gives a right to particular property, it can entitle the claimant to any increase in the value of that property.

3) No statutory limitation period
- Under The Limitation Act 1980, a personal claim must be brought within 6 years. This does not apply to a proprietary remedy against a trustee within Limitation Act 1980 s 21(1), although the equitable doctrine of laches may apply in a rare case.

Front 45

Limitations to tracing at common law

Back 45

1) Claimant must have legal title